Opinion
3:20-cv-202-SLH-KAP
06-21-2021
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Defendant's motion for judgment on the pleadings, ECF no. 3, should be granted and other than an Eighth Amendment claim based on allegations of events on September 11, 2018, the complaint should be dismissed without leave to amend.
Report
Plaintiff Purcell Bronson, currently an inmate at S.C.I. Houtzdale serving a life sentence imposed for a murder he committed as an inmate at S.C.I. Pittsburgh serving a life sentence imposed for a murder in Philadelphia, see Bronson v. Kelchner, Case No. 2:07-CV-1191-ARH (W.D.Pa.), filed a complaint, ECF no. 1-2, in the Court of Common Pleas of Clearfield County on or about September 4, 2020, against defendant Melissa Reifer, a kitchen steward at Houtzdale, alleging that Reifer had violated his constitutional rights one week shy of two years earlier, when on September 11, 2018 she allegedly squeezed his testicles while searching for contraband and then filed a misconduct report alleging that he possessed contraband. Subsequent searches failed to find any contraband. Reifer's acts allegedly “constituted crime code violations” and violated various provisions of the state constitution and the First, Eighth, and Fourteenth Amendments to the federal Constitution. Plaintiff also alleges that on seven days in February 2018 and on four consecutive days in December 2019, defendant “solicitated [sic] plaintiff to engage in sexual misconduct with her, ” and that on these eleven occasions “physical contact was made.” Defendant removed the case to this Court and filed an answer, ECF no. 2, and a motion for judgment on the pleadings, ECF no. 3, with a brief at ECF no. 4, to which plaintiff filed a response at ECF no. 5.
The standard for sufficiency of a complaint opposed by a motion for judgment on the pleadings Fed. R.Civ. P. 12(c) is the same as that used in evaluating motions to dismiss for failure to state a claim under Rule 12(b)(6), see Mierzwa v. Dudek, 793 Fed.Appx. 105, 107 (3d Cir. 2019), cert. denied, 141 S.Ct. 666, 208 L.Ed.2d 274 (2020). The same standard is prescribed by the Prison Litigation Reform Act as codified at 28 U.S.C.§ 1915A, relevant here because Reifer is an employee of a governmental entity. The PLRA commands:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
At this stage of the proceeding, the defendant does not challenge the sufficiency of the Eighth Amendment claim. Two elements are required for that claim according to the Court of Appeals for the Third Circuit: “the incident must be objectively, sufficiently intolerable and cruel, capable of causing harm, and the official must have a culpable state of mind.” Ricks v. Shover, 891 F.3d 438, 475 (3d Cir.2018). The Court explained:
Regarding the subjective prong, we consider whether the official had a legitimate penological purpose or if he or she acted “maliciously and sadistically for the very purpose of causing harm.” [Whitney v>] Albers, 475 U.S. [312] at 319-320 [1986](quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Because this is a mental state, “unless admitted, [it] has to be inferred rather than observed” from conduct such as harassing comments, or an overly invasive search in violation of facility policy. Washington [v. Hively], 695 F.3d [641] at 643 [(7th Cir. 2012)]; see Crawford [v. Cuomo], 796 F.3d [252] at 258 [2d Cir. 2015)](“There is no penological justification for checking to see if an inmate has an erection ....”). The nature of the violative conduct itself will often be enough to demonstrate the prison official's culpable state of mind. See Crawford, 796 F.3d at 252 (“[I]f . . . the officer intentionally brings his or her genitalia into contact with the inmate in order to arouse or gratify the officer's sexual desire or humiliate the inmate, a violation is self-evident because there can be no penological justification for such contact.”).
While the subjective inquiry involves a judgment call that may be relatively easy to make based on the specific circumstances, the objective prong seems more difficult. What level of inappropriate conduct objectively constitutes a violation? At the outset, we readily acknowledge that this kind of line-drawing is difficult in part because it is uncomfortable. It requires parsing a set of allegations or facts that may be deeply troubling, and making a judgment as to whether the conduct alleged implicates the Constitution. Nevertheless, it is within our purview to provide guidance as to which claims may “involve a harm of federal constitutional proportions.” Boddie [v. Schnieder], 105 F.3d [857] at 861 [(2d Cir. 1997)].
When deciding objective harm, “not . . . every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson [v. McMillian], 503 U.S. [1] at 9 [1992]. Indeed, “[t]he Constitution ‘does not mandate comfortable prisons.'” Farmer [v. Brennan], 511 U.S. [825] at 832 [(1994)] (quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Rather, in contrast to common tort law, the Eighth Amendment shields inmates from only those actions “repugnant to the conscience of mankind.” Hudson, 503 U.S. at 10 (quoting Whitley, 475 U.S. at 327).
The objective element “is therefore contextual and responsive to ‘contemporary standards of decency.'” Id. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). And “conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.” Rhodes, 452 U.S. at 347.
Ricks has urged us to adopt a standard that would collapse the subjective and objective inquiries, so that a finding of a lack of penological purpose would be determinative. He draws this standard from Crawford, in which the Court declared that: “In determining whether an Eighth Amendment violation has occurred, the principal inquiry is whether the contact is incidental to legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast whether it is undertaken to arouse or gratify the officer or humiliate the inmate.” 796 F.3d at 257-58.
We do not take issue with the focus of the analysis by other courts on whether the official performing the search had a penological purpose. See, e.g., id. at 258 (concluding that “no amount of gratuitous or sexually-motivated fondling of an inmate's genitals” is constitutional). That is, when a search involves intrusive, intimate touching to ensure that contraband and weapons are not present, an inquiry into its purpose is legitimate. For instance, in Crawford, the corrections officer allegedly “fondled and squeezed [the plaintiff's] penis” during a visit with the plaintiff's wife, to “make sure [he] did not have an erection.” Id. at 258. We have no doubt that this level of touching would be objectively, sufficiently serious to violate the Constitution. But because it occurred during a search, the Court needed to determine whether that search was legitimate or pretextual. Moreover, the Court clarified that “even if contact between an officer and inmate's genitalia was initially justified, if the officer finds no contraband, continued sexual contact may be actionable.” Id. at 257.
Absent a legitimate penological purpose, the type of touching involved in, for instance, a body-cavity search, would be undoubtedly cruel and unusual. And a desire to humiliate the inmate or gratify the officer-inferred through the officer's conduct- is a reasonable way to distinguish between invasive touching that is permitted by law to ensure safety and that which is not. An analysis focused on intent of the officer is therefore appropriate when evaluating whether an objectively intrusive search is constitutional.
We have previously discussed this distinction as it pertains to claims for unconstitutional prison conditions. In Parkell v. Danberg, where an inmate was “subjected to thrice-daily visual body-cavity searches, ” we concluded that those searches would only be cruel and unusual if they were "undertaken maliciously or for the purposes of sexually abusing" the plaintiff. 833 F.3d 313, 335-36 (3d Cir. 2016) (quoting Crawford, 796 F.3d at 258). We found a focus on intent necessary to demarcate permissible from ultra vires invasiveness. Accordingly, the inquiry to define culpable state of mind versus legitimate penological purpose is a necessary, but not sufficient, inquiry.
Fusing the subjective and objective inquiries, as Ricks urges we must, would constitutionalize any alleged touch, if the corrections officer lacked a penological purpose. We decline to entirely eliminate the objective prong of the analysis by collapsing it with the subjective prong. That is to say, even if sexualized touching lacks a penological purpose, it may still fall below the threshold of constitutional cognizability based on a lack of objective seriousness.
As noted above, a single incident, if sufficiently serious or severe, can run afoul of the Eighth Amendment as surely as can multiple, less egregious incidents. While a pattern of harassment and sexualized touching may more clearly be considered objectively “cruel and unusual, ” that does not diminish the harm that may arise from an isolated act. See Crawford, 796 F.3d at 257 (stating that “[Recurrences of abuse” are relevant, but not dispositive, to severity).
Moreover, while our framework explicitly draws from the Supreme Court's excessive force jurisprudence, the absence of force or injury will not doom a sexual abuse claim outright. Although physical injury will certainly signal severity, it is not the touchstone for objective seriousness. Whether an action is sufficiently harmful to be cruel and unusual cannot be determined only by looking at physical injury, because an abusive sexual encounter may not leave any marks. Indeed, sexual abuse “tend[s] rather to cause significant distress and often lasting psychological harm.” Washington, 695 F.3d at 643.
Whether conduct is objectively cruel and unusual is better considered with sensitivity to “evolving standards of decency.” Graham v. Florida, 560 U.S. 48, 58, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (quoting Estelle, 429 U.S. at 102). Ricks posits that the current standard vis-a-vis sexualized touching in prison contexts is “zero tolerance.” Opening Br. at 15. We are aware that societal norms surrounding unwanted sexual attention are changing rapidly, and we are mindful that behavior that may not have warranted damages in the past may so warrant today. We nonetheless are not persuaded that the current standard is zero tolerance for all minor sexualized touching in prison, such that all such claims are objectively serious to a constitutional degree.
When considering contemporary standards of decency, we begin by reviewing “objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question.” Roper v. Simmons, 543 U.S. 551, 564, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). We also examine the “consistency of the direction of change.” Atkins v. Virginia, 536 U.S. 304, 315, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
In recent years, both the federal government and all but two of the states have passed legislation outlawing sexual activity between guards and inmates. See Crawford, 796 F.3d at 259-60 nn. 5-6 (collecting state statutes). As we elaborate below, these enactments reflect a societal standard that conduct falling outside the definition for “rape” nonetheless is taken seriously and compensable by damages at law. They do not, however, compel a finding that all inappropriate touching is per se unconstitutional.
The Prison Rape Elimination Act (“PREA”), passed unanimously by Congress, explicitly seeks to “establish a zero tolerance standard for the incidence of prison rape in the prisons of the United States.” 34 U.S.C. § 30302(1). Rape is objectively intolerable, cruel, and unusual. But the statute defines “rape” so as to overtly encompass severe misconduct. See id. § 30309(9) (defining “rape” as “the carnal knowledge, oral sodomy, sexual assault with an object, or sexual fondling of a person, forcibly or against that person's will”).
Similarly, the Prison Litigation Reform Act ("PLRA"), intended to address an overwhelming number of prisoner-initiated lawsuits in federal courts, limits recovery for mental and emotional injuries unless a litigant can show “physical injury or the commission of a sexual act.” 42 U.S.C. § 1997(e). And “sexual act” as defined explicitly excludes touching that is unintentional or “through the clothing.” See 18 U.S.C. § 2246(2). We therefore do not read the PREA and the PLRA as evincing Congressional intent to create a zero-tolerance standard for minor sexual touching.
Nor do similar state enactments criminalizing sexual contact between inmates and prison officials envisage a zero tolerance standard. For instance, Pennsylvania, where SCI Graterford is located, criminalizes guard-inmate rape, sexual assault, and “indecent contact.” Indecent contact, the least serious of the defined offenses, is “[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person.” 18 Pa. Cons. Stat. §§ 3101; 3124.2. Thus, while the “consistency of the direction of change” towards outlawing such contact assures us that our society no longer accepts sexual abuse, that change does not oblige us to constitutionalize “every malevolent touch.”
As this inquiry is necessarily contextual, fact-specific, and to be conducted in the first instance by the District Court, we decline to craft a mechanical factors test for when sexual contact is objectively, sufficiently serious. The scope, place, and timing of the offensive conduct will bear on its severity, as will the details of the alleged contact. But it goes without saying that objectively serious sexual contact would include sexualized fondling, coerced sexual activity, combinations of ongoing harassment and abuse, and exchanges of sexual activity for special treatment or to avoid discipline. In context, including whether it violates established prison procedures, other sexualized touching may also be objectively serious.
Ricks v. Shover, 891 F.3d at 475-478(footnote omitted).
However, plaintiff expresses a desire to sue defendant in both her individual and official capacities for damages - $400,000, to be exact-, and to assert tag-along claims to the Eighth Amendment claim against Reifer individually. He cannot inflate his complaint that way.
First, claims against state government agents in their official capacities are legally claims against the state, but the Commonwealth of Pennsylvania -and therefore Reifer in her official capacity- is not a person that can be sued under 42 U.S.C.§ 1983. Hafer v. Melo, 502 U.S. 21, 25-26 (1991). Thus, even the Eighth Amendment claim against the defendant in her official capacity must be dismissed with prejudice.
Plaintiff also has no standing under federal law to assert any alleged state law “crime code violations.” The Supreme Court has never wavered from its position that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Likewise, plaintiff cannot assert a claim for money damages due to defendant's alleged conduct under the Pennsylvania Constitution. Pocono Mountain Charter School v. Pocono Mountain School Dist., 442 Fed.Appx. 681, 687 (3d Cir. 2011) (holding that monetary claims under the Pennsylvania Constitution were properly dismissed because “[n]o Pennsylvania statute establishes, and no Pennsylvania court has recognized, a private cause of action for damages under the Pennsylvania Constitution.”) Plaintiff cannot save his state law claims by claiming that he seeks a declaratory judgment in addition to damages because a declaratory judgment action, to be a case and controversy under the federal Constitution, must adjudicate present or future rights, not be a mere retrospective opinion about the legality of past conduct. See Hubert v. Wetzel, 2018 WL 4828470 at *5 (W.D. Pa. Oct. 4, 2018).
There is no First Amendment claim. After Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003), the three elements of a retaliation claim are: (1) that the plaintiff took some action itself protected by the constitution; (2) that the defendant took adverse action against the plaintiff sufficient to deter a person of ordinary firmness from persisting in his conduct; and (3) that there was a causal connection between the plaintiff's protected conduct and the adverse action.
Plaintiff correctly asserts that the injury requirement for a retaliation claim is less demanding than for an Eighth Amendment claim, see ECF no. 5 at 2, but plaintiff incurably fails to allege the first and third elements of a claim by asserting that he was retaliated against for the “right to be free from sexual touching” and the “right to be let alone.” To say that plaintiff by his existence was “exercising” his right to be let alone and that this “action protected by the constitution” “caused” the defendant's action would morph any constitutional claim by any plaintiff into a duplicate retaliation claim. If plaintiff's sophistry were admitted then an inmate could state he was “exercising” his right to be free from deliberate indifference to his serious medical needs, a non-inmate searched by police could assert the “exercise” of a right to be free of searches without probable cause, and so on. How this “exercise” of a right could cause its violation -the necessary third element- is not alleged, and is probably not explicable even by the most elastic reasoning. Finally, turning to the second element of a retaliation claim, plaintiff alleges only that he was given a citation and that it led to a hearing at which there was no evidence of contraband presented. In other words, his only allegation of the second element of a retaliation claim is that he had to attend a hearing. That is insufficient “adverse action” to deter a reasonable person from persisting in anything. That this most especially would not deter plaintiff, some of whose previous civil actions reflect numerous strikes under the PLRA, see Bronson v. Beaven, No. 08-3981 (3d Cir. Feb. 26, 2009) (citing Bronson v. Edwards, No. 97-3056 (3d Cir. May 27, 1997); Bronson v. Newfield, No. 96-7771 (3d Cir. June 18, 1997); and Bronson v. Stapleton, No. 93-3307 (3d Cir. Dec. 28, 1993)); Bronson v. Naji, Case No. 3:13-cv-124 (W.D. Pa. July 10, 2013); Bronson v. Naji, Case No. 3:ii-cv-26o (W.D. Pa. Nov. 17, 2011); Bronson v. McDaniels, Case No. 2:10-cv-1518 (W.D. Pa. Dec. 21, 2010); Bronson v. U.S. Dept. of Justice, Case No. 3:10-cv-293 (W.D. Pa. Dec. 17, 2010); Bronson v. Hunt, Case No. 2:10-cv-1517 (W.D. Pa. Nov. 16, 2010); Bronson v. Overton, Case No. 1:o8-cv-52 (W.D. Pa. May 27, 2010); Bronson v. Naji, Case No. 3:11-cv-07 (W.D. Pa. Mar. 1, 2011); Bronson v. Lamb, Case No. 2:09-cv- 225 (W.D. Pa. Feb. 9, 2010); and Bronson v. U.S. Marshal, Case No. 2:io-cv-2i (W.D. Pa. Feb. 9, 2010), should be obvious.
As for plaintiff's Fourteenth Amendment claims based on the alleged conduct offered as an Eighth Amendment claim, the Supreme Court has stated that “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). Because the Fourteenth Amendment's protection for plaintiff is coextensive with the Cruel and Unusual Punishments Clause, see Porter v. Pennsylvania Department of Corrections, 974 F.3d 431, 448 (3d Cir.2020), any Fourteenth Amendment claim is redundant.
The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and other cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is "futile" or "inequitable." It would be futile to allow further amendment of the complaint as to the September 11, 2018 incident. As for plaintiff's passing reference to additional instances of “physical contact” that led to no alleged injury, those passing references state no claim even under Ricks v. Shover, and it would be inequitable to allow a plaintiff with extensive experience in drafting complaints to use Grayson to draft a complaint by trial and error, and extend the statute of limitations for at least claims based on alleged events in February 2018 .
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).